A.K. Raveendran v. A. Murali and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN FRIDAY, THE 29[TH] DAY OF APRIL 2022 / 9TH VAISAKHA, 1944 OP(C) NO. 1513 OF 2020 AGAINST THE ORDER/JUDGMENT IN OS 210/1997 OF SUB COURT, KANNUR** ## **PETITIONER/S:** A.K.RAVEENDRAN AGED 74 YEARS S/O. RAMUNNI, RAVIPRABHA, P.O. AZHIKODE SOUTH, KANNUR-670 009 BY ADVS. V.R.KESAVA KAIMAL SMT.C.DEVIKA RANI KAIMAL ## **RESPONDENT/S:** 1 A.MURALI AGED 61 YEARS, S/O. KUNHIKANNAN MASTER, ALAKKAT HOUSE, VELIYANNUR AMSOM, VARAM DESOM, KANNUR DISTRICT-670 594 2 A. LOHITHAKSHAN, AGED 59 YEARS, S/O. KUNHIKANNAN MASTER, ALAKKAT HOUSE, VELIYANNUR AMSOM, VARAM DESOM, KANNUR DISTRICT-670 594 3 A. UMA, AGED 57 YEARS, D/O. KUNHIKANNAN MASTER, ALAKKAT HOUSE, VELIYANNUR AMSOM, VARAM DESOM, KANNUR DISTRICT-670 594 4 A. ARUNA, AGED 53 YEARS D/O. KUNHIKANNAN MASTER, ALAKKAT HOUSE, VELIYANNUR AMSOM, VARAM DESOM, KANNUR DISTRICT670 594 5 A.K. SUPRIYA, AGED 51 YEARS, D/O.KUNHIKANNAN MASTER, ALAKKAT HOUSE, VELIYANNUR AMSOM, VARAM DESOM, KANNUR DISTRICT-670 594 6 A. ARYA, AGED 49 YEARS, D/O. KUNHIKANNAN MASTER, ALAKKAT HOUSE, VELIYANNUR AMSOM, VARAM DESOM, KANNUR DISTRICT-670594 7 A. HEMA, O.P.(C) No.1513 of 2020 -2- AGED 46 YEARS, D/O. KUNHIKANNAN MASTER, ALAKKAT HOUSE, VELIYANNUR AMSOM, VARAM DESOM, KANNUR DISTRICT-670 594 8 A.K. RATNAVATHY, AGED 76 YEARS, D/O. RAMUNNI, RESIDING AT THRIKARTHIKA, P.O. THOTTADA, KANNUR-670 594 9 A.K. PAVITHRAN, AGED 72 YEARS, S/O.RAMUNNI, ROJA NIVAS, VELIYANNUR AMSOM DESOM, P.O. VARAM, KANNUR-670 594 10 A.K. SASINDRAN, AGED 70 YEARS, S/O. RAMUNNI,RESIDING AT MILAN,VELIYANNUR AMSOM DESOM, P.O. VARAM, KANNUR-670 594 11 A.K. HAREENDRAN, AGED 67 YEARS, S/O. RAMUNNI, RESIDING AT SANADANAM, VELIYANNUR AMSOM DESOM, P.O. VARAM, KANNUR-670 594 12 A.K. JAYACHANDRAN, AGED 64 YEARS, S/O. RAMUNNI, ROJANIVAS, VELIYANNUR AMSOM DESOM, P.O.VARAM, KANNUR-670 594 13 A.K. ROJA, AGED 61 YEARS, D/O. RAMUNNI, ROJA NIVAS, VELIYANNUR AMSOM DESOM, P.O. VARAM, KANNUR-670 594 BY ADVS. SRI.R.SURENDRAN SMT.C.S.RAJANI KUM.S.MAYUKHA **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12.10.2021, THE COURT ON 29.04.2022, DELIVERED THE FOLLOWING:** O.P.(C) No.1513 of 2020 -3- ## **JUDGMENT** Dated this the 29[th] day of April, 2022 The petitioner is the third respondent in Final Decree Interlocutory Application No.32 of 2012 in O.S.No.210 of 1997 pending before the Sub Court, Kannur. In the suit for partition, a preliminary decree was passed on 31.08.1999, directing division of the plaint B Schedule Property into two equal shares and allotment of one share to defendants 4 to 11 and the remaining share to the 12[th] defendant. In the preliminary decree, B Schedule property is described as follows; “çÕBÞGáÕÏW É¿ßEÞæùµø ÉùOßW ÎicJßW µßÝæAÏ¢Ö¢ ØíÅÜJáU çÎWÉùE ØíµâZ ®¿áMᢠØíAâ{ßçÜAí ¦ÕÖcÎÞÏß ¥ÄßȵJáU صÜÕßÇ ©ÉµøÃB{ᢠ²KÞ¢ ÄÞAí É¿ßEÞæù ¥¢Ö¢ øIÞ¢ ÄÞAí µßÝæAÏ¢Ö¢. ” 2. Although plaintiffs filed appeal against the judgment and decree and petitioner, along with the other legal heirs of the 12[th] defendant, O.P.(C) No.1513 of 2020 -4- filed a cross appeal therein, both appeal as well as cross appeal were dismissed. Thereupon, the respondents/defendants 4 to 11, who are allotted with half share in plaint B schedule, filed the FDIA. The petitioner, though not allotted with any share, is arrayed as the third respondent in the final decree application, in his capacity as legal heir of the deceased 12[th] defendant and former Manager of the school functioning in B schedule property. In the final decree proceedings, the Advocate Commissioner filed Ext.P6 report, sketch and share list. The respondents filed I.A.No.878 of 2010 for remitting the Commissioner's report, mainly contending that as per the preliminary decree, the school building and movables alone are to be divided and the Commissioner committed a mistake in valuing the land (3.95 cents) wherein the school building is situated. It was also contended that, structures like toilet, well, O.P.(C) No.1513 of 2020 -5- Anganwadi building etc are not part of B schedule and the Commissioner cannot value the same. As no objection was filed by the respondents, the interlocutory application was allowed and the report remitted to the same Commissioner. Thereupon, the Advocate Commissioner filed a revised report excluding the value of the land and the structures like latrine, well and Anganwadi building. This time, the petitioner along with another filed I.A.No.1399 of 2010 for remitting the Commissioner's report. By Ext.P11 order, the learned Sub Judge dismissed the application. The petitioner challenged Ext.P11 before this Court and by Ext.P12 judgment, the impugned order was set aside and the matter remitted back for providing opportunity to the petitioner to adduce evidence on his application seeking remittance of the Commissioner's report. Thereafter, the petitioner produced certain accounts pertaining to the amounts allegedly ## O.P.(C) No.1513 of 2020 -6- spent by him for the repair/renovation of the school building and furniture and examined the Advocate Commissioner as a witness. The court below reconsidered the petitioner's application in terms of the direction in Ext.P12 judgment and dismissed the same vide Ext.P18 order. Aggrieved by Ext.P18, the petitioner preferred O.P.(C) No.2494 of 2016, which was dismissed under Ext.P19 judgment, finding that an application for remitting the Commissioner's report was not maintainable in the light of the decision in _**Francis Assisi v. Sr.Breesiya [2017 (1) KLT**_ _**1041]**_ . While dismissing the original petition, it was made clear that the order will not take away the right of the party to seek issuance of a fresh Commission. Accordingly, the petitioner filed Ext.P20 application for issuing a fresh Commission to divide the plaint schedule property by metes and bounds and to file alternative share list, allotting the plaint schedule property to O.P.(C) No.1513 of 2020 -7- the petitioners in the final decree and the legal representatives of the 12[th] defendant. The respondents filed Ext.P21 objection and the court below dismissed the application under Ext.P22 order. Hence, this original petition. 3. Heard Adv.V.R.K.Kaimal for the petitioner and Adv.R.Surendran for the contesting respondent. 4. Learned Counsel for the petitioner strenuously contended that B Schedule includes the land in appurtenant to the school building and hence, the Commissioner ought to have divided the land also. In my considered opinion, the attempt is to re-agitate an issue which has attained finality. The description of B Schedule in the decree takes in only the school building and the furniture therein. The plaintiffs in the partition suit had challenged the judgment and decree in appeal and the petitioner, along with another legal heir of the 12[th] defendant, had ## O.P.(C) No.1513 of 2020 -8- filed a cross appeal. The contention in the cross appeal was that the B schedule property includes 50 cents of land. By judgment dated 2.01.2006, the cross appeal was dismissed, finding that the contention that B schedule consists of 50 cents of land was not raised in the suit. In I.A.No.878 of 2010 filed by the contesting respondents, the main reasons for seeking remittance of Commissioner's report was that the Commissioner had wrongly valued 3.95 cents of land in which the school building is situated. The said contention being unopposed, the application for remittance was allowed. In the subsequent report, the Advocate Commissioner rightly excluded the value of the land. In his chief examination (Ext.P17), the Commissioner has stated that he had excluded the value of land after reading the interlocutory application. The petitioner's application for remitting Commissioner's report was rejected under Ext.P18 ## O.P.(C) No.1513 of 2020 -9- order, after taking note of all these facts. The challenge against that order was repelled by Ext.P19, reserving the petitioner's liberty to move an application for issuance of fresh Commission. Merely because such liberty is reserved, that cannot be taken to have conferred a right on the petitioner to seek issuance of fresh Commission. For that, the petitioner should be able to point out patent mistakes in the report, have a bearing on the final decree to be passed. The only patent mistake being repeatedly pointed out is the non-inclusion of the land in partition proceedings. That question having attained finality, the petitioner cannot seek to re-agitate the question. Even though learned Counsel contended that the reliance placed by this Court on the decision in _**Francis Assisi** (supra)_ , for rejecting the challenge Ext.P18 is legally incorrect, this Court cannot entertain the challenge. The ## O.P.(C) No.1513 of 2020 -10- contention that, as Manager of the School, the 12[th] defendant and thereafter, the petitioner had spent huge amounts for maintenance of the school has been taken into account by the learned Sub Judge and the petitioner granted the liberty to seek sale of the building and other articles described in the Commissioner's report by auction among the sharers or by way of public auction, as the case may be. As rightly observed by the court below, a fresh Commission need not be issued for that purpose. Moreover, issuance of a fresh commission at this stage will only further protract the passing of a final decree in a suit of the year 1997. For the aforementioned reasons, the original petition is dismissed. Sd/- ## **V.G.ARUN JUDGE** Scl/ O.P.(C) No.1513 of 2020 -11- ## **APPENDIX OF OP(C) 1513/2020** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |EXHIBIT P1|TRUE COPY OF THE PLAINT IN O.S.NO.| ||210/1997 ON THE FILES OF SUB COURT,| ||THALASSERY.| |EXHIBIT P2|TRUE COPY OF THE PRELIMINARY DECREE| ||DATED 31.08.1999 IN O.S. NO. 219/1997| ||PASSED BY THE SUB COURT, THALASSERY.| |EXHIBIT P3|TRUE COPY OF THE FINAL DECREE| ||APPLICATION IN I.A. NO. 2049/09 IN| ||O.S. NO. 210/97| |EXHIBIT P4|TRUE COPY OF THE COUNTER STATEMENT| ||FILED BY FIRST RESPONDENT AND| ||PETITIONER TO EXT.P3.| |EXHIBIT P5|TRUE COPY OF THE COUNTER STATEMENT| ||FILED BY RESPONDENTS 4 TO 9 TO EXT.P3.| |EXHIBIT P6|TRUE COPY OF THE COMMISSION REPORT| ||ALONG WITH SKETCH PLAN, SHARE LISTS| ||AND ACCOUNT LIST.| |EXHIBIT P7|TRUE COPY OF THE COUNTER STATEMENT| ||FILED BY THE PETITIONER AND HIS MOTHER| ||TO I.A.NO. 878/2010| |EXHIBIT P8|TRUE COPY OF THE REVISED COMMISSION| ||REPORT ALONG WITH PLAN AND SHARE| ||LISTS.| |EXHIBIT P9|TRUE COPY OF THE APPLICANT NO. IA| ||1393/2010 FOR REMITTING THE COMMISSION| ||REPORT.| |EXHIBIT P10|TRUE COPY OF THE COUNTER STATEMENT TO| ||EXT.P9| |EXHIBIT P11|TRUE COPY OF THE ORDER DATED| ||15.03.2016 IN I.A.NO. 1399/2010 IN| ||FDIA NO. 32/2012 IN O.S. NO. 210/1997| ||PASSED BY THE SUB COURT, KANNUR.| |EXHIBIT P12|TRUE COPY OF THE JUDGMENT DATED| ||05.07.2016 IN OP(C)NO. 1477/2016| |EXHIBIT P13|TRUE COPY OF THE DETAILED ABSTRACT| ||ESTIMATE OF THE EXPENDITURE SPENT BY| ||THE PETITIONER.| |EXHIBIT P14|TRUE COPY OF THE SATEMENT OF RECEIPT| ||SHOWING THE EXPENDITURE.| ## O.P.(C) No.1513 of 2020 ## -12- EXHIBIT P15 TRUE COPY OF THE STATEMENT OF RECEIPT SHOWING THE EXPENDITURE. EXHIBIT P16 TRUE COPY OF THE AFFIDAVIT IN SUPPORT OFTHE PETITION TO PRODUCE THE DOCUMENTS. EXHIBIT P17 TRUE COPY OF THE DEPOSITION OF THE COMMISSIONER. EXHIBIT P18 TRUE COPY OF THE ORDER DATED 05.09.2016 IN I.A. NO. 1399/2010 IN FDIA, NO. 32/2012 IN O.S.NO. 210/1997 ON THE FILES OF SUB COURT, KANNUR. EXHIBIT P19 TRUE COPY OF THE JUDGMENT DATED 26.10.2019 IN O.P.(C) NO. 2494/2016 EXHIBIT P20 TRUE COPY OF THE PETITION IN I.A. NO. 1170/2019 IN F.D.I.A NO. 32/2012 IN O.S. NO. 210/1997 EXHIBIT P21 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE SECOND FINAL DECREE PETITIONER TO EXT. P20. EXHIBIT P22 CARBON COPY OF THE ORDER DATED 24.09.2020 IN I.A.NO. 1170/2019 IN F.D.I. A. NO. 32/2012 IN O.S.NO. 210/1997